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Signed, SEALED, Delivered, I'm Yo—well, maybe not ...

Whether one agrees with it or not, judges are increasingly forcing patent litigators to justify their motions to seal. Patent litigators will need to stop assuming they can seal whatever they want, whenever they want, as long as their opponents agree. As with all procedural matters, location is everything, and the speed at which, and extent to which, litigators will have to stop sealing-without-a-full-explanation will depend on the district, and, in some cases, the specific judge.

If we still had investigative reporters, this change in procedural norms would be an opportunity to get a peek or two behind the curtain at the Great Powers involved in the Great Patent War (Apple, Samsung, Google, Nokia, Microsoft, etc., etc.)--particularly since the battlefield for so many of their cases is the N.D.Cal., which has been really pushing back at the industry-std oversealing practices of patent litigators:

The United States district court is a public institution, and the workings of litigation must be open to public view. ... unless they identify a limited amount of exceptionally sensitive information that truly deserves protection, the motions [to seal] will be denied outright.
Oracle v. Google, N.D.Cal. 10-CV-03561 (ECF No. 540) (Alsop, J.)
However, the parties are ORDERED to carefully scrutinize the documents it seeks to seal. At this stage of the proceedings, the presumption of openness will apply to all documents and only documents of exceptionally sensitive information that truly deserve protection will be allowed to be redacted or kept from the public. Nearly all of the documents which met the lower, “good cause” standard do not meet the higher, “compelling reasons” standard for trial.
Apple v. Samsung, N.D.Cal. 11-CV-01846 (ECF No. 1256) (Koh, J.)

Admittedly, the two quotes above concern materials at trial (where, as Judge Koh points out, a higher std applies then to the years of motion practice leading up to trial), but district court judges are pushing back against the industry std kneejerk mots./seal at all stages of litigations. Within the last couple of months:

  • Mot./seal the other side's expert report DENIED. Avocent v. Rose Electronics, D.N.J. 06-cv-01711 ECF 560 (2012-06-11)
  • Mot./seal SJ motion (requesting both sides' mat'l's be sealed) DENIED. X6D Ltd. v. Li-Tek Corp., C.D.Cal. 10-cv-2327 ECF 266 (2012-06-06)
  • Unopposed Mot./seal deposition and e-mail DENIED, Pacific Bioscience Labs v. Nutra Luxe MD, LCC, W.D.Wash. 10-cv-230 ECF 149 (2012-06-14)
  • Qualcomm's unopposed mot./seal DENIED because arguing "... in general terms that these documents contain 'proprietary,' 'highly sensitive,' and 'confidential information ... ' ... does not establish with particularity the need to file these documents under seal." Tessera v. Qualcomm, N.D.Cal. 12-cv-692 ECF 170 (2012-06-20)
  • Cablevision's unopposed mot./seal exhibits designated confidential and highly confidential DENIED because "the application fails to particularly identify what the parties consider to be confidential. Moreoever, a review of the documents fails to reveal any confidential material" (emphasis added). In re Katz Interactive Call Proc. Pat. Litig., C.D.Cal. 07-cv-01816 ECF 7843 (2012-07-20)

It may happen more slowly in some districts rather than others, but the days of courts rubberstamping unopposed and/or joint motions to seal are coming to a close. Patent litigators need to inform their clients:

People who want secrecy should opt for arbitration.
United Oil Co. v. California, 220 F.3d 562 (7th Cir. 2000) (Easterbrook, J.)
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